Is there an alternative to the gavel image?

As I have frequently posted – e.g. here -, the image of a gavel is often used in British and German newspapers to illustrate a court judgment. But UK and German judges don’t use gavels. Judges in the USA use them. In the UK, the gavel or hammer is what an auctioneer uses.

I don’t suppose everyone would understand how irritating it is to keep seeing this totally inappropriate image. But one site that does is Inappropriate Gavels. They tweet at @igavels too, and there’s no lack of examples in the press.

It strikes me that the gavel is a good image to use – stock image companies are full of them. alamy reports 28.294 images of gavels. So we need an alternative image.

The only commonly used image for a court decision apart from gavels is the scales of justice, sometimes held by a woman. alamy seems to have 6,937 of those. Maybe we should be encouraging good images of the scales of justice if we are to eradicate the gavel.

Here’s a Guardian article on Inappropriate Gavels, with comments, from the year 2015: Gavel bashing: why banging in court on TV is a serious factual offence.

The Trial – real lawyers and jury on BBC

People in the UK can see this 5-part serial on iPlayer – spoilers ahead.

Last week the BBC put on a program showing a fictitious murder trial but with real barristers, judge, court clerk and expert witnesses and with a jury who were randomly chosen members of the public. It reminded me of Marcel Berlin’s The Law Machine, which I watched ad nauseam with my students years ago.

The first episode I watched I thought not only the defendant and witnesses, but also the jury were actors. Not so! But those jurors were fixated on calling each others’ remarks sexist – the case involved a man charged with murdering his estranged but not quite estranged wife. For example, the relatively coherent older woman juror with experience of social services began to describe the way ‘an abusive man’ may appear amenable at first but gradually becomes domineering and controlling. She was immediately shouted down by two or three male jurors as ‘sexist’. Now this was boring if it was actors, but if it was ‘real’ people it made me worry about how one could speak about abuse and still be heard. However, I have now come to the conclusion that the jury’s remarks were tightly edited and we cannot decide from hearing a short exchange what they were like over several hours. Just like the Big Brother house and other reality TV products, you can’t trust it.

If one wanted to see the law in action, I would strongly recommend the way the barristers appeared. I particularly enjoyed the bit of bickering between them: it seemed authentic and matched my own memories.

It was odd that the judge’s closing speech was not given.

And then, in the last programme, at great length, the ‘true story’ was shown and we saw that the defendant really did kill his wife. I think it was a massive mistake to show what really happened. And above all, the way the jury’s individual votes were shown, showing that it was the women who voted guilty, and the details on how much domestic violence is not reported. An important issue, but we were to be manipulated.

This case should have ended in a not guilty verdict, not guilty for lack of evidence, but it resulted in a hung jury. Of course the jurors knew they were on TV, and that might have influenced their demeanour.

The whole thing has been well taken apart by The Secret Barrister: In forgetting our fundamental principles of justice, The Trial’s fascinating run fell down at the last:

Taking the above together, the only possible interpretation of the editorial line is: “This jury should have convicted. They didn’t, ergo they failed. What does this tell us about juries? (Clue: Maybe it’s sexism.)”

Which would be fine, had that been the premise of the programme. But it wasn’t. At least, not as far as we’d been led to believe. It was billed – accurately – as a groundbreaking docu-drama in which we would be given a unique insight into the way that juries operate. The opacity of the jury room means that, notwithstanding academic studies attempting to recreate its conditions, we know little about how juries approach their task. We have a fervent cultural faith in the inherent supremacy of trial by jury; let’s, Channel 4 suggested, cut open this sacred cow and have a rummage around inside.

As the Secret Barrister says, the jury trial is not about discovering the truth – but the programme behaved as though it was.

Obiter J also has a useful post on the programme, more about legal details and less about criticizing.

Legal research colouring book and EW judicial system

What Color is your C.F.R.? – PDF version free online – is a nice idea, alas very much a USA thing and not very full (yet) (via Open Law Lab, tweeted by Stéphane Cottin). C.F.R. is apparently the Code of Federal Regulations.

For something more British, The Judicial System of England and Wales: a visitor’s guide is another free downloadable PDF, published by the judiciary, probably of use not only to visitors. In particular, it has a great courts diagram. I especially like the photo on the title page:

jud-sys-cover

Randnummer/pinpointing

A colleague recently asked how to translate Randnummer/Randzeichen/Randziffer into English, in three different contexts.

1. The usual query of inexperienced legal translators is ‘What does Rz./Rn. mean?’ The usual translation of Randnummer, Randzeichen or Randziffer is marginal number or margin number. Here’s a discussion on ProZ.

Germans just love marginal numbers, especially in legal contexts and above all in textbooks. This example is from an old copy of Peter Hay, US-Amerikanisches Recht, page 74:

hay IMG_6398

The marginal numbers here are the 172 and 173. Every single paragraph is numbered consecutively through the whole book. So you don’t need to refer to ‘7. a)’ but just to one number.

I think these are a peculiarly German thing, and there are instructions online on how to create them in Microsoft Word, for example, which is not too easy. (Randziffern in Microsoft Word). They are sometimes related to the subject matter and sometimes to the physical location, see the administrative court judgment below and the English case report practice mentioned further below.

Here’s another example of marginal numbers used in a German court case, which I don’t think is very common. The NRW Oberverwaltungsgericht uses these numbers in the right-hand margin to make it easier to refer.

2. Case reports of the CJEU use paragraphs, called para. or paras., a term which needless to say is hard to pin down when you’re looking for it (rather like indent in EU cases). So when a German version of an EU case refers to Randnummer, it is translated into English as para. The number is not in the margin, either.

3. Finally, we really do have marginal numbers/letters or marginal references in English. Some case reports have used not numbers, but letters to make it easier to quote. Google Books has Studying Law, by Simon Askey and Ian McLeod, from which I quote:

Marginal markings and neutral citations
Some series of law reports use marginal markings, in order to make it easier to provide pinpoint citations, while others do not. The original report of Henthorn v Fraser contains no such markings, while the most common system in the 20th century was to provide marginal letters, evenly spaced down each page. The system of marginal letters worked reasonably well, but it was rather cumbersome for true pinpoint citations, which had to take a form such as ‘page 234, letter D, line 3.’ More importantly, this citation would vary from one set of law reports to another, according to the page numbering of the report in question.

I remember barristers lugging cartloads of law reports to the Law Courts, where the court staff would lay out matching volumes from the court library and these would later be cited in argument. Nowadays I suppose at least for newer cases computers replace this.

More on citation in OSCOLA, whence the nice word pinpoint:

A pinpoint is a reference to a particular paragraph of a judgment or page of a report.

and also Latin ‘gadgets‘:

Avoid the use of ‘Latin gadgets’ such as supra, infra, ante, id, op cit, loc cit and contra, which are not widely understood.

The language of the court is German – continued

The language of the court in Germany is German, but also Sorbian.

There is in fact an EU directive which guarantees the right to interpretation and translation in criminal proceedings, when implemented.

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings

Section 187 of the Courts Constitution Act, as cited in my last-but-one post, implements this requirement, but with a loophole which can save the courts ordering a translation.

To quote the translation of the section once more:

An oral translation of the documents or an oral summary of the content of the documents may be substituted for a written translation if the rights of the accused under the law of criminal procedure are thereby safeguarded. As a rule, this can be assumed if the accused has defence counsel.

A colleague, Corinna Schlüter-Ellner, explained the situation in more detail. There is a provision in the Code of Criminal Procedure, section 37 (3) (see below) which makes it necessary to serve an indictment with a translation if the defendant does not speak German. If this is not done, time does not begin to run, because it would be unfair to the other parties. In the case of a Strafbefehl, however, there is only one party, so the court does not risk the service being ineffective without a translation – the defendant has to get a translation if one is needed.

Strafprozeßordnung (StPO)
§ 37 Zustellungsverfahren
(1) Für das Verfahren bei Zustellungen gelten die Vorschriften der Zivilprozeßordnung entsprechend.
(2) Wird die für einen Beteiligten bestimmte Zustellung an mehrere Empfangsberechtigte bewirkt, so richtet sich die Berechnung einer Frist nach der zuletzt bewirkten Zustellung.
(3) Ist einem Prozessbeteiligten gemäß § 187 Absatz 1 und 2 des Gerichtsverfassungsgesetzes eine Übersetzung des Urteils zur Verfügung zu stellen, so ist das Urteil zusammen mit der Übersetzung zuzustellen. Die Zustellung an die übrigen Prozessbeteiligten erfolgt in diesen Fällen gleichzeitig mit der Zustellung nach Satz 1.

Code of Criminal Procedure
Original translation by Brian Duffett and Monika Ebinger
Translation updated by Kathleen Müller-Rostin and Iyamide Mahdi
Coordinating Editor of the Translation Mrs. Mahdi

Section 37
[Procedure Concerning Service]
(1) The provisions of the Code of Civil Procedure shall apply mutatis mutandis to the procedure for service.
(2) Where documents addressed to a participant are served on several persons authorized to receive them, time limits shall be calculated from the date on which the last person was served.
(3) If a translation of the judgment is to be made available to a participant in the proceedings pursuant to section 187 subsections (1) and (2) of the Courts Constitution Act, the judgment shall be served together with the translation. In such cases service on the other participants in the proceedings shall be effected at the same time as service pursuant to the first sentence.

And here’s a nice article (in German) with pictures of the coordinating translator Mrs Mahdi, born in Glasgow.

Comments: we don’t use mutatis mutandis in legislation in the UK nowadays, as a search on the statute database shows (99 results, using Advanced Search), but with the necessary modifications (over 200 results). It usually indicates a translation done by a German lawyer!
addressed to a participant: addressed to one party (participant)?

The language of the court is German – Strafbefehle

I wrote something about Strafbefehle a year ago.

A Strafbefehl (order of summary punishment) is a charge finding that you have committed a minor offence and imposing a fine. If you disagree, you can object and elevate the matter to criminal legal proceedings. It’s a bit like a parking ticket.

When I was living in Germany and translating for the courts as a certified translator, I originally used to get Strafbefehle to translate, and I used to teach students to translate them into English, but the requests became fewer and fewer. There is a theory that German judges know that the language of the courts is German and therefore do not order translations. But I suspect the general decision to cut down on costs occurs at a higher level.

But it does seem wrong for a foreigner, who may not speak German, to get a German document through the post without any way of understanding it supplied.

There’s now been a decision by Freiburg Regional Court (Landgericht) that a Strafbefehl is not effectively served to a non-speaker of German until the translation is served. (There was a similar decision by the Stuttgart Regional Court in 2014).

Sources from the blog of Detlef Burhoff, Rechtsanwalt and former judge at the Higher Regional Court who often deals with translation questions (Nochmals: Strafbefehl – nur mit Übersetzung ist Zustellung wirksam….) – thanks also to Igor Plotkin, a fellow-translator, for frequently mentioning the issue.

The story in Freiburg was that a Strafbefehl was issued against a Georgian speaker on 13.11.2014, but it was not until 24.08.2015 that a translation into Georgian was provided to the defendant, who was in prison (not sure if there was a connection here). Consequently the defendant’s objection filed on 28.08.2015 was within the time limits, contrary to the view of the lower court. The defendant had been informed of his rights by the police by means of a printout in the Georgian language (I wonder if their Georgian is as good as their English? I know Georgian is a tough language so probably they had someone good to write it).

The basis of all this is section 187 of the Gerichtsverfassungsgesetz (‘official’ translation: Courts Constitution Act).

§ 187
(1)…
(2) Erforderlich zur Ausübung der strafprozessualen Rechte des Beschuldigten, der der deutschen Sprache nicht mächtig ist, ist in der Regel die schriftliche Übersetzung von freiheitsentziehenden Anordnungen sowie von Anklageschriften, Strafbefehlen und nicht rechtskräftigen Urteilen. Eine auszugsweise schriftliche Übersetzung ist ausreichend, wenn hierdurch die strafprozessualen Rechte des Beschuldigten gewahrt werden. Die schriftliche Übersetzung ist dem Beschuldigten unverzüglich zur Verfügung zu stellen. An die Stelle der schriftlichen Übersetzung kann eine mündliche Übersetzung der Unterlagen oder eine mündliche Zusammenfassung des Inhalts der Unterlagen treten, wenn hierdurch die strafprozessualen Rechte des Beschuldigten gewahrt werden. Dies ist in der Regel dann anzunehmen, wenn der Beschuldigte einen Verteidiger hat.

Translation provided by Kathleen Müller-Rostin.

Section 187

(1) …
(2) As a rule, a written translation of custodial orders as well as of bills of indictment, penal orders and non-binding judgments shall be necessary for the exercise of the rights under the law of criminal procedure of an accused who does not have a command of the German language. An excerpted written translation shall be sufficient if the rights of the accused under the law of criminal procedure are thereby safeguarded. The written translation shall be made available to the accused without delay. An oral translation of the documents or an oral summary of the content of the documents may be substituted for a written translation if the rights of the accused under the law of criminal procedure are thereby safeguarded. As a rule, this can be assumed if the accused has defence counsel.

Comments: nicht rechtskräftige Urteile: non-binding judgments is odd – I would say judgments that are not (yet) final and non-appealable.

who does not have a command of the German languagewho does not speak German

eine auszugsweise schriftliche Überetzung – difficult – excerpted sounds to me as if it was the whole thing, taken from a different source – a written translation of parts of the document?
There is repeated use of the rights of the accused under the law of criminal procedure – I feel like writing the accused’s criminal-procedure rights but maybe that is too compressed.

Translation and interpreting

Translation and interpreting (or more commonly in the US: interpretation)

Translators translate and interpreters interpret? Yes, but interpreting is a form of translation. Newspapers are going to go on referring to people translating in court, Afghan translators and so on. Get over it, people!

interptransl

And I can’t agree with the argument for the distinction that interpreters have to translate on the spot so they are allowed leeway, i.e. interpreting is called interpreting because it involves understanding and conveying a message – as if translation didn’t, see here:

In fact, it is this real-time comprehension, analysis, and accurate reformulation of one language into another that poses the greatest challenge. The interpreter is both listener and speaker, working in real-time, without a safety net, and with little room to correct errors. The simultaneous, or virtually simultaneous, nature of the work combined with a lack of control over the content of the original speeches mean that the interpreter performs his or her work in demanding conditions that leave little room for error.

However, the importance of the translator’s work must not be overlooked: the absence of immediate time constraints allows the translator to apply more mental resources to the task of finding the correct solution. The translator always seeks rigorous solutions, not solutions that will just ‘get the job done’. To do so, the translator applies thorough research and consulting techniques and uses specialist databases to broaden their understanding of the subject matter.

just because ‘interpret’ has a double meaning doesn’t mean that the two meanings merge.

While I’m on the subject, Werner Siebers, the German criminal defence attorney blogger, has reported on an interpreter who was removed from a case because he translated too freely.

Er versteht sich selbst mehr als Ausleger und Interpretierer denn als Übersetzer. Er meint, „das Gesetz“ – welches auch immer er meint – schreibe ihm vor, gerade nicht wörtlich zu übersetzen, vielmehr müsse er gleich den von ihm erkannten – vermuteten? – Sinn zu Papier bringen.

The comments get a bit hair-raising:

Batman schreibt:
11. Mai 2016 um 11:59

Also wenn der Zeuge sagt: „It was raining cats and dogs“, soll der Dolmetscher übersetzen, dass es „Katzen und Hunde“ geregnet habe??
Antworten

rawsiebers schreibt:
11. Mai 2016 um 13:41

Selbstverständlich muss er zwingend so übersetzen, er hat nichts zu unterpretieren und auszulegen, er ist lediglich Sprachmittler. Gestattet ist ihm, eine Anmerkung zu machen, dass es sich um eine Redewendung handelt, die eine andere Bedeutung als die wörtliche Übersetzung haben kann (z.B. es regnet Bindfäden oder wie aus Eimern oder einfach stark). Vorrangig ist aber zunächst selbstverständlich und zwingend die wörtliche Übersetzung.

However, it appears that the interpreter was indeed very free: he said “Dafür habe ich kein Geld” (I haven’t got enough money for that) instead of “Mir sind die Hände gebunden” (My hands are tied).

There was a bit of a discussion about this blog post on a translators’ mailing list and some remarks were made by court interpreters – police, public prosecutors or judges ask the interpreter to instruct the witness:

“Herr Dolmetscher, sagen Sie ihm bitte, er ist … schwarzgefahren und hat das Recht… etc.”

oder “Ach ja, ich habe vergessen den Zeugen zu beleheren. Herr Dolmetscher, sagen Sie ihm… Ähm.. Sie kennen doch die Belehrung, gelle? Also, sagen Sie ihm, dass er als Zeuge berechtigt ist… und alles andere, das Übliche, halt!”

German court supplies translation of indictment late

Further to the last post on an infringement of the right to a fair hearing, the Burhoff online blog reports (in German) on a decision (PDF) of the Bundesgerichtshof (Federal Court of Justice) against a criminal chamber of Aachen Regional Court (Landgericht). The criminal chamber did not supply the defendant with a translation of the indictment until the seventh day of the trial and then refused leave to stay the proceedings. The two defendants, from the Dominican Republic, were charged with drug dealing in a not small quantity and the decision of the BGH was based on Article 6 of the European Convention on Human Rights (for any British journalists reading, that has nothing to do with the EU).

A mere conduit?

Under the E-Commerce Regulations, an ISP can escape liability for content because it is a mere conduit.

Conduit in the figurative sense: the OED says

4. fig. The channel or medium by which anything (e.g. knowledge, influence, wealth, etc.) is conveyed;

But currently in the USA, there is an argument as to whether an interpreter or translator is a mere conduit.

I suppose that’s how some customers see us.

When the police use an interpreter in an interrogation and do not record the defendant’s words but only the translation of them into English, can the interpreter be challenged legally? Lawrence Solan writes in his Balkinization blog:

An interesting question concerning forensic linguistics is making its way through the appellate courts: When the police use an interpreter during an interview (or interrogation) of a suspect who later becomes a defendant in a prosecution, and the defendant’s words in her original language are not recorded, does the defendant have a constitutional right to confront the interpreter? As a cost-saving measure, more and more law enforcement agencies, and some courts, have been retaining services that interpret the interview over the telephone. One of them, Language Line Solutions. http://www.languageline.com/, has found itself in the middle of this constitutional question.

courts should be more realistic in their understanding of what interpreters and translators can do. First, courts should stop relying on the “conduit” theory of translation. Compare two reputable translations of any work of literature. They will be similar in some ways, different in others. To the extent that word choice matters in the context of a criminal prosecution, nuanced differences may affect a case’s outcome. Second, interpreters make errors. The legal system should recognize this. Third, courts should not accept as accurate representations that the entire professional staff of a private firm retained by the government is dispassionate and of high professional character. Surely the defendant need not accept such representations.

Solan recommends that at least the original statements should be recorded as potential evidence.